2013 (1) TMI 269 - AT - Service Tax

Stay petition - Extended period of limitation - Real Estate Service - The sum of Rs.8 crores was given to Shri Benny Joseph and the said amount was meant to meet the expenses for settlement of labour - Held that - The activities undertaken by the appellant, as per the agreement, prima facie, fall under the category of Real Estate Services . However, the claim of the Department that the amount of Rs.8 crores paid into the account of Shri Benny Joseph should also be treated as service charges received by the appellant, prima facie, is not acceptable. Therefore, if Rs.4.88 crores is taken as the service charges received by the appellant, the tax liability comes to around Rs.49 lakhs only. They ought to have taken registration and filed half yearly returns for the period April to September by 25th of October, 2005 and the notice has been issued on 06/10/2010 which is within 5 years from the relevant date, prima facie, extended time limit is invocable. Appellant has claimed that he has already deposited a sum of Rs.27.85 lakhs. There shall be waiver of pre-deposit of balance of dues

Summary

Issues:
1. Whether the amount received by the appellant is liable to service tax under the category of 'Real Estate Service'.
2. Whether the demand for service tax is time-barred.
3. Verification of the claimed amount already deposited by the appellant.

Analysis:
1. The appellant received a sum of Rs.4.88 crores from Shri Varkey George, out of the total amount of Rs.8 crores paid to handle expenses for settlement of labor. The Commissioner held that the entire amount was received for 'Real Estate Service', imposing a service tax demand of Rs.1,31,37,600/-. The appellant argued that the amount received was for 'Business Support Services' and that the show-cause notice issued after 5 years was time-barred. The Tribunal found that the activities fell under 'Real Estate Services', but disagreed with the Department's view that the entire amount was service charges. The tax liability was re-assessed to approximately Rs.49 lakhs based on the amount received by the appellant.

2. The appellant claimed that the show-cause notice issued on 06/10/2010 was time-barred as they had not registered during the relevant period. However, the Tribunal noted that registration should have been taken, and returns filed by October 2005, making the notice within the 5-year limit. The Tribunal considered the extended time limit applicable in this case due to the lack of registration during the relevant period.

3. The appellant claimed to have deposited Rs.27,85,793/-, which the Department sought to verify. The Tribunal directed the appellant to deposit a further Rs.20 lakhs within eight weeks. The Department was given the liberty to verify the claimed amount, with instructions for the appellant to pay if the verification revealed non-payment. The waiver of pre-deposit and stay of recovery were subject to compliance with the directed payments and verifications, ensuring the balance of dues as per the impugned order.